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DOE v. SCOTT

January 29, 1971

JANE DOE AND SALLY ROE, SUING ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, AND DAVID N. DANFORTH, M.D., CHARLES FIELDS, M.D., RALPH M. WYNN, M.D., AND FREDERICK P. ZUSPAN, M.D., SUING ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, MARY POE, BY HER MOTHER, PAULINE POE, SUING ON BEHALF OF HERSELF, AND ALL OTHERS SIMILARLY SITUATED, INTERVENING PLAINTIFF,
v.
WILLIAM J. SCOTT, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, AND EDWARD V. HANRAHAN, STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS, DEFENDANTS, DR. BART HEFFERNAN, INTERVENING DEFENDANT.



Before Swygert, Chief Circuit Judge, Robson, Chief District Judge, and Campbell, Senior District Judge.

The opinion of the court was delivered by: Swygert, Chief Circuit Judge.

MEMORANDUM OPINION

This is an action for declaratory and injunctive relief brought to declare that the Illinois abortion statute*fn1 is violative of the United States Constitution for one or more reasons.*fn2 After a three-judge district court was convened the parties were ordered to restrict their arguments to the allegations that the statute is unconstitutionally vague and unconstitutionally invades the privacy of pregnant women. Oral argument was heard, and the case is now before us on a multiplicity of motions including cross-motions of plaintiffs and defendants for summary judgment.

Plaintiffs Doe and Roe, suing anonymously on behalf of themselves and all other women similarly situated, assert that they were unable to obtain legal, medically safe abortions in Illinois because their physicians reasonably believed that they could not perform such an operation upon the plaintiffs without fear of prosecution by defendant law enforcement officials pursuant to the challenged statute. Plaintiff Doe, a woman of means, subsequently had a successful abortion performed in Great Britain, while plaintiff Roe, who is indigent, was compelled to bear an unwanted child since the option of a foreign abortion was economically foreclosed. Plaintiffs Danforth, Fields, Wynn and Zuspan, all licensed physicians, sue on behalf of themselves, and all other similarly situated physicians, alleging that the existence of the challenged statute interferes with and adversely affects their ability to conduct their medical practices with proper regard for their patients' best interests. Intervening plaintiff Poe is a high school girl who was pregnant as a result of a forcible rape and sues anonymously by her mother as next friend, asserting the same claims as Doe and Roe.*fn3

The principal defendants are William J. Scott, Attorney General of the State of Illinois, and Edward V. Hanrahan, State's Attorney of Cook County, Illinois. Both are law enforcement officials of the State of Illinois who are charged with enforcing its laws, including the challenged statute. Intervening defendant Heffernan is a licensed physician who has been granted leave to appear herein as guardian ad litem for those conceived but not yet born.

Defendant Scott asserts that he is not a proper party to this action. Although the Illinois statutes do not make the attorney general the chief prosecutor pursuant to the state's criminal statutes, the leading Illinois case clothes his office with the same authority as attorneys general at the common law. In Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915), the Illinois Supreme Court held that, although the state legislature may confer powers additional to those inherent in the common law office of attorney general, it may not deprive the office of any of its historical powers and duties as chief legal representative of the state.*fn4 The court further stated, "[A]t common law the Attorney General was the law officer of the crown and its chief representative in the courts."*fn5 Furthermore, the attorney general has conceded that he is required to represent the people of the state before the supreme court in all matters in which their interests are apparent and to assist in the prosecution of any criminal trial when he believes the people's interest requires it.*fn6 Indeed, the overlap of the powers and duties of the state's attorneys of the several counties and the attorney general is such that it appears that, where their powers are concurrent, either officer may initiate appropriate proceedings in the name of the state if the other has not acted.*fn7 We hold, therefore, that the attorney general is a proper party defendant in this action.

Defendants challenge the standing of the plaintiffs to raise the claims which they assert. The female plaintiffs allege that the operation of the statute deprived them of their asserted right to terminate unwanted pregnancies in the state of their residence. They assert that they have been injured either by having been forced to bear unwanted children or by having to travel to foreign states to obtain abortions by qualified medical personnel. We have no doubt that, "On the basis of plaintiffs' substantive contentions, * * * there * * * exists a `nexus between the status asserted by the [female plaintiffs] andthe claim(s) (they present).'"*fn8 The standing requirements of Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed. 2d 947 (1968), are thus satisfied by the litigative posture of the female plaintiffs. Moreover, the physician-plaintiffs have standing to raise the claims of their patients even if we assume that no independent claim of theirs could withstand a motion for judgment on the pleadings.*fn9 All plaintiffs thus have standing to raise the claims which they assert.

I

Plaintiffs contend that the Illinois abortion statute must be adjudged unconstitutionally vague. We agree. The statute prohibits all abortions except those "performed by a physician * * * in a licensed hospital or other licensed medical facility because necessary for the preservation of the woman's life."*fn10 Plaintiffs point to the italicized language as the basis for their assertion that the statute is invalid under the due process clause of the fourteenth amendment because of its imprecision. It is clear that, as the Supreme Court has said:

    No one may be required at peril of life,
  liberty or property to speculate as to the
  meaning of penal statutes. All are entitled to be
  informed as to what the State commands or
  forbids. * * * "[A] statute which either forbids
  or requires the doing of an act in terms so vague
  that men of common intelligence must necessarily
  guess at its meaning and differ as to its
  application, violates the first essential of due
  process of law."*fn11

The question thus becomes whether men of ordinary intelligence must guess at the meaning of the words, "necessary for the preservation of the woman's life."

We note at the outset that these words, or substantially identical ones, have convinced some courts that they are incapable of certain interpretation,*fn12 and other courts have disagreed.*fn13 If courts cannot agree on what is the essential meaning of "necessary for the preservation of the woman's life" and like words, we fail to see how those who may be subject to the statute's proscriptions can know what it prohibits. On the issue of vagueness, we are in agreement with the reasoning of People v. Belous*fn14 and Roe v. Wade.*fn15 One need not inquire in great depth as to the meaning of such words as "necessary" and "preserve" to conclude that the holdings of those cases are correct. "Necessary" has been characterized as vague by the United States Supreme Court*fn16 and has been similarly described by other courts.*fn17 It is "a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, proper, or conducive to the end sought."*fn18

The word "preserve" is similarly susceptible of so broad a range of connotations as to render its meaning in the statute gravely amorphous, since it may mean anything from maintaining something in its status quo to preventing the total destruction of something.*fn19 The treating physician who believes an abortion is medically or psychiatrically indicated thus finds himself threatened with becoming a felon as well as with the possibility of losing his right to practice his profession if he errs in the legal interpretation of a penal statute, the words of which have not been sufficiently definite for courts to agree on their meaning.*fn20 This is precisely the kind of situation that the void-for-vagueness doctrine is intended to prevent.

II

Aside from the fact that the statute is vague, its practical effect is to make abortion unavailable to women unless there is a reasonable certainty that death will result from a continuation of pregnancy. This practical effect of the statute constitutes an intrusion on constitutionally protected areas too sweeping to be justified as necessary to accomplish any compelling state interest. These protected areas are women's rights to life, to control over their own bodies, and to freedom and privacy in matters relating to sex and procreation.

The Supreme Court has long recognized that a person possesses a fundamental, constitutionally protected right to privacy and freedom in certain personal and intimate matters, especially those pertaining to the home and family.*fn21 This right was developed and applied by the Supreme Court to strike down a state's birth control statute in Griswold v. Connecticut.*fn22 The Court there held that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy."*fn23 Griswold set out in broad terms the right of married couples to be free from governmental intrusion into their intimate affairs:

We cannot distinguish the interests asserted by the plaintiffs in this case from those asserted in Griswold. In both, "[t]he essence of the interest sought to be protected * * * is the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals."*fn24 It is as true after conception as before that "there is no topic more closely interwoven with the intimacy of the home and marriage than that which relates to the conception and bearing of progeny."*fn25 We believe that Griswold and related cases establish that matters pertaining to procreation, as well as to marriage, the family, and sex are surrounded by a zone of privacy which protects activities concerning such matters from unjustified governmental intrusion.*fn26

We do not agree with the defendants that the choice whether to have a child is protected before conception but is not so protected immediately after conception has occurred.*fn27 A woman's interest in privacy and in control over her body is just as seriously interfered with by a law which prohibits abortions as it is by a law which prohibits the use of contraceptives. The majority of courts which have considered the question have so held, concluding that a woman has a fundamental interest in choosing to terminate a pregnancy. In People v. Belous, supra, the California Supreme Court struck down that state's abortion statute, holding:

  The fundamental right of the woman to choose
  whether to bear children follows from the Supreme
  Court's and this court's repeated acknowledgment
  of a "right of privacy" or "liberty" in matters
  related to marriage, family, and sex.*fn28

In United States v. Vuitch, supra, a single district court judge struck down a portion of the District of Columbia abortion statute, saying:

  There has been, moreover, an increasing
  indication in decisions of the Supreme Court of
  the United States that as a secular matter a
  woman's liberty and right of privacy extends to
  family, marriage and sex matters and may well
  include the right to remove an unwanted child at
  least in early stages of pregnancy. * * * Matters
  have certainly reached a point where a sound,
  informed interest of the state must affirmatively
  appear before the state infringes unduly on such
  rights.*fn29

More recently, in Babbitz v. McCann,*fn30 and in Roe v. Wade,*fn31 three-judge courts found that the right to choose whether to bear a child was fundamental ...


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